Friday, February 05, 2010

A few weeks ago Google announced, in the wake of ‘a highly sophisticated and targeted attack on our corporate infrastructure’ and to widespread plaudits in the Western media at least, that the company was taking a stand against China. They would no longer censor Chinese search results in accordance with the local laws and if the government didn’t like it then they would withdraw their business from the country. US Secretary of State, Hilary Clinton, subsequently criticised China over the attacks and called on Google to avoid facilitating "politically motivated censorship".

In The Enemy of the State, the second programme of the OU/BBC's The Virtual Revolution series, Dr Aleks Krotoski looks at China via the notion of a digital arms race between the individual and the state, a model through which the government attempts to control the individual by mass censorship, propaganda and surveillance.

Many people are aware of the “Great Firewall of China”, the internet filters deployed by China to censor web pages containing terms like ‘Falun Gong’, ‘Dalai Lama’ or ‘Tiananmen Square massacre’. Yahoo!, another big US technology company, has been accused of working “regularly and efficiently with the Chinese police" to hand over the personal details of dissident web bloggers, leading to terms of 8 and 10 years respectively for Li Zhi and Shi Tao for criticising their government. Microsoft, Cisco and numerous other global companies have also been vilified for cooperating in censoring the web in China. Most defend themselves, as Google do, “in the belief that the benefits of increased access to information for people in China and a more open Internet outweighed our discomfort in agreeing to censor some results.”

As an Irish, white, middle class academic, resident in the UK, I can grumble about unethical behaviour of big business and the poor human rights record of regimes like China or Iran through the lens of a simplistic algorithm:

China, Iran, Saudi Arabia, North Korea = totalitarian states

Therefore,

Censorship + surveillance = scary + bad

And,

Citizen anonymity = necessary + good

Yet such smug simplistic models rarely tell the real story. It is not just the supposed totalitarian states that are engaged in large scale censorship and surveillance. Freedom of speech has never been an absolute. Even in the US, where it is protected by the first amendment to the constitution, citizens don’t have the freedom to yell “fire!” in a crowded theatre.

At the behest of the UK government, in response to a failed attempt to blow up a plane with explosives hidden in the attacker’s underpants, HeathrowAirport has installed digital strip search machines for the masses. UK Transport Secretary Andrew Andonis said: "In the immediate future, only a small proportion of airline passengers will be selected for scanning. If a passenger is selected for scanning, and declines, they will not be permitted to fly." You will not be allowed on a plane at Heathrow if you refuse to go through a digital strip search when asked.

Laws in the UK, US and a range of other Western democracies require surveillance capability to be built into our communications networks, large scale data retention and the construction of large databases of personal information, all in the name of combating terrorism, crime or protecting children and intellectual property. Wide scale censorship of the Net takes place not just in China and Saudi Arabia but in the UK, parts of the US, Canada, Spain, France, Australia, Germany and many other countries in an attempt to block such horrors as child pornography or Nazi propaganda. Yet that is ok in the simplistic model of the world I presented earlier:

But the model quickly breaks down on all fronts when examined in any detail. Firstly you have to realise that software filters, known by critics as ‘censorware’, don’t do value judgments. They often censor perfectly legitimate sites and fail to block illegal ones. They often also censor websites which are critical of the companies selling the filter software. And in 1999 a big US internet service provider, IDT, shut down all internet traffic originating in the UK because of a spam problem they traced to a computer at LeedsUniversity.

Secondly, anyone with even the mildest understanding of the value of personal privacy has no time for the over-used empty soundbite ‘nothing to hide nothing to fear’, deployed regularly by politicians with large database ‘cures’ for various societal ills.

And thirdly, the thing about technical and legal architectures of surveillance is they are not the exclusive playground of the good guys. The Internet makes our world more complicated not less so. Government computers are widely and virtually irreversibly networked with private sector machines; and governments have not got a great record of building totally reliable, fit-for-purpose, secure information systems. Large, valuable, porous information systems with built-in surveillance tools are very attractive targets for individuals, organisations and states with malign intent.

They also have a tendency to be misused by public officials because they are convenient to use. So for example council officials in the UK use anti-terror laws and technical facilities to spy on families suspected of lying on their forms when applying to get their children into good state schools. After the terrorist attacks of 11th September 2001, then President George W. Bush ordered the National Security Agency to use surveillance systems hardwired into the telecoms network to illegally engage in mass warrantless wiretapping of the phone conversations of tens of thousands of people.*

Although there have been a variety of instances of US military information finding its way into Chinese hands via the hacking of US military systems and possibly vice versa, we have not yet really seen a whole lot of this. But as Ross Anderson says in the Virtual Revolution, as the world becomes more connected the opportunity for nations to do bad things to each other will increase, especially since the tools of surveillance and espionage are literally being designed and built into our communications systems.

Ironically, by building a surveillance infrastructure in the name of security, Western governments and commercial organisations are making us much less secure not more so. Systems with no such in-built surveillance tools, but instead constructed on the principles of “net neutrality”** supported by President Obama recently in his first state of the union address, are more secure.

I’m not suggesting the UK government have anything like the totalitarian intent of the cold war East German or Soviet regimes or that MI5 or MI6 have the terrifying influence of the Stasi, the KGB or the Nazi SS. Gordon Brown is certainly no Mao Zedong and respected journalists like Henry Porter or former Information Commissioner Richard Thomas are not going to suddenly be detained and locked up for 10 years for repeatedly accusing the government of “sleepwalking into a surveillance state”. But we continue to construct and expand these systems at our peril and the threats they pose are real not virtual.

In the spring of 2004 over 100 mobile phones used by key members of the Greek government including the Prime Minister, minister for justice and foreign minister were subject to covert wiretapping which lasted for over a year. It’s still not clear who did the spying but the facility to do it was built into the Vodaphone phones by Ericsson. It was only supposed to be switched on if permission was granted through appropriate legal processes. Somebody figured out how to switch it on. Without permission.

A leaked MI5 memo, in recent days, has outlined the problem of Chinese spying on UK business both through conventional and electronic means. Again China is the bad guy, this time using the internet for industrial espionage rather than waging war on its own citizens.

The services and components of the global surveilled communications infrastructure, apparently used by China for such nefarious activities, are supplied by global corporations like Vodaphone, Ericsson, Yahoo!, Microsoft, Apple, Cisco, Intel, Nokia, Siemens and yes, Google; as well as dynamic home grown manufacturing industry within China and other cheap manufacturing bases like India. These companies variously do business in the EU, the Americas, Eastern Europe, Middle East and Asia because such business provides a return for their shareholders. To the degree that such business facilitates economic development in countries like China, and the consequent improvement of overall living standards, that’s generally a good thing. To the extent that it facilitates the suppression of basic civil rights, such companies need to be more active in engaging with the Chinese authorities in ways that can influence them to respect such rights more widely and more wisely.

Time will tell what effect the current Google exchanges with the emerging economic superpower will have. As to whether it is enlightening to view the Web in the context of China through the model of a digital arms race between the individual and the state, I’ll leave you the reader to decide.

But the final word goes to James Fallows, who has regularly and eloquently argued that China’s relations with the West are more complex and potentially beneficial for both sides, that “China is a still-poor, highly-diverse and individualistic country whose development need not "threaten" anyone else and should be encouraged” but also warns:

“In a strange and striking way there is an inversion of recent Chinese and U.S. roles. In the switch from George W. Bush to Barack Obama, the U.S. went from a president much of the world saw as deliberately antagonizing them to a president whose Nobel Prize reflected (perhaps desperate) gratitude at his efforts at conciliation. China, by contrast, seems to be entering its Bush-Cheney era. For Chinese readers, let me emphasize again my argument that China is not a "threat" and that its development is good news for mankind. But its government is on a path at the moment that courts resistance around the world. To me, that is what Google's decision signifies.”

* For a really interesting perspective on phone tapping in historical context is it worth having a look at this Pathé News clip from 1957, http://www.britishpathe.com/record.php?id=33047 , on the widespread shock over the illegal wiretapping of a phone conversation between a UK barrister Patrick Marriman and his client, a known and self confessed criminal, Billy Hill.Thanks to Richard Lamont via the ukcrypto list for the pointer to that little gem.

Jacques, Martin (2009) When China Rules the World: The Rise of the Middle Kingdom and the End of the Western World. Allen Lane. New York, London, Toronto, Dublin, Victoria, New Delhi, Rosebank

Keay, John (2008) China: A History. HarperPress. London

Report of the Committee of Privy Councillors appointed to inquire into the interception of communications. Presented to Parliament by the Prime Minister by Command of Her Majesty October 1957. http://www.fipr.org/rip/Birkett.htm

Solove, Daniel J. (2004) The Digital Person: technology and privacy in the information age. New YorkUniversity Press. New York, London.

"4. The lack of detail in relation to the technical measures proposals – and in particular,
in relation to the scope of technical measures, the criteria for their imposition and
the enforcement process – has made our assessment of the compatibility of these
proposals with the human rights obligations of the United Kingdom extremely
difficult. As we have explained in the past, flexibility is not an appropriate reason for
defining a power which engages individual rights without adequate precision to
allow for proper parliamentary scrutiny of its proportionality. (Paragraph 1.28)
5. We reiterate our invitation to the Government to provide fuller justification for its
proposals. (Paragraph 1.38)
6. In our view, it is impossible assess fully whether these proposals will operate in a
compatible manner in practice without more detail of the proposed mechanism for
technical measures. Because of the lack of detail on the face of the Bill and the limited
foundation for justification provided for the breadth of these proposed powers, we
acknowledge the concerns about the potential for these powers to be applied in a
disproportionate manner which could lead to a breach of internet users’ rights to
respect for correspondence and freedom of expression. (Paragraph 1.39)
7. There are a number of issues which could helpfully be clarified; some on the face of
the Bill, in order to reduce the risk that these proposals could operate in a manner
which may be incompatible with the Convention. We recommend that the Minister
clarify:
a)the precise intended impact of these proposals on individual accounts, including
(i) whether technical measures may include indefinite suspension of an account and
whether any service limitations imposed will be for a specified time-frame and/or
renewable; and (ii) any potential impact the imposition of technical measures may
have on the ability of a user to secure an alternative service; (Paragraph 1.40)
b) the minimum criteria which would be required to be satisfied before the
imposition of technical measures. The Government has indicated that technical
measures will follow the issue of copyright infringement notices. It would be helpful
if the Government could clarify whether (i) the imposition of technical measures will
be subject only to the initial assessment of the copyright holder that it appeared that
the individual service user had breached his or her copyright; and (ii) if so, would the
same standard of evidence and proof be required for the imposition of technical
measures as would be required for the issue of copyright infringement reports?
(Paragraph 1.40)
8. We recommend that the Bill be amended to make it clear that technical measures
may only be introduced after an assessment by OFCOM of the necessity and
proportionality of these new measures, taking into account the impact of the initial
obligations code. In so far as it is possible, we recommend that the Bill should be
amended to provide additional details on the minimum criteria for the imposition of
technical measures, including the standard of proof which must be applied; the
“trigger” for the imposition of such measures; and any relevant defences for service
users who have taken all reasonable measures to protect their service from
unauthorised use and who have not knowingly facilitated the use of their service for
the purposes of infringing copyright. (Paragraph 1.41)...

11. Without a clear picture of the criteria for the imposition of technical measures, it is
difficult to reach a final conclusion on the fairness of the substantive decision making
process for the imposition of technical measures and its compatibility with Article 6
ECHR and the common law. We recommend that at a minimum, the Government
must be required to confirm that the First Tier Tribunal will be able to consider
whether an infringement of copyright has occurred and any defence that no
infringement of a copyright holders’ rights has been committed or knowingly
permitted by the account holder. Further information about the quality of evidence
to be provided and the standard of proof to be applied should be provided, ideally on
the face of the Bill, and at a minimum by the Minister during the course of debates
on these provisions. In addition, we recommend, for the avoidance of doubt, that the
Bill require that the technical obligations code must provide for any appeal rights to
suspend the application of technical measures and for costs of any successful appeal
to be recoverable by any successful applicant. (Paragraph 1.50)"

Translation: Writing a law that says 3 strikes will be implemented without specifying how, why, where, when, by whom, under what authority and what kind of due process and pre-cutoff appeal mechanism will be provided is unacceptable. The comittee also criticises the government over the notion that clause 17 would give a government minister the power to change copyright law when they felt like it without recourse to parliament.

Thursday, February 04, 2010

The brilliant Peter Suber has outlined 4 analogies between open access and clean energy.

"When I think about the political fortunes of open access, I find that I compare them privately to the political fortunes of clean energy. I know there are differences, but I keep returning to the similarities.

I'm not ready to say that the similarities are more salient than the differences. But it's time to get these analogies out in the open.

(1) The gap between breakthrough and uptake

Lots of smart and well-funded people are looking for a source of energy that is renewable, inexpensive, efficient, low-impact to produce, low-impact to use, and doesn't require a police state to keep byproducts out of the hands of terrorists. Suppose they succeed. That would be a momentous breakthrough.

This is already a key difference between OA and clean energy. On the energy side, we're well-embarked but still moiling through primary difficulties of physics and engineering, trying to raise efficiencies and lower prices. But on the OA side, the breakthrough is in hand, and has been since the birth of the internet. We've long since replaced the difficulties of engineering with the difficulties of uptake and persuasion...

(2) Putting obstacles in our way

Imagine the same breakthrough in efficient, inexpensive, clean energy. Now imagine that during the age of dirty energy we had adopted laws and practices which turn out to deter the development, uptake, and use of the spectacular new technology. Some of the obstacles clogging the path to adoption are of our own making.

We might have provided subsidies to dirty energies, which in turn created jobs and revenues, which in turn elected politicians and enriched corporations who now fight to protect those jobs and revenues at the expense of any energy breakthrough. We might have grown to depend on cars, which spawned suburbs, which not only elected politicians but changed the landscape of life for millions of people and now make almost irrelevant any energy breakthrough that doesn't work in cars. We might have grown to depend on cheap oil, which nurtured whole industries and lifestyles which we find it inconceivable to abandon...

(3) Slowing down to protect the incumbents

Imagine the same breakthrough technology producing efficient, inexpensive, renewable, clean energy. Imagine that the only downside seemed to be that it would jeopardize the revenue streams of oil companies and coal mines.

Should we hesitate to use it? Should we wait until we can find a way to ensure the survival of the threatened industries? When policy-makers weigh the advantages and disadvantages of the new technology, should the effect on oil companies and coal mines count as a disadvantage? If so, how much environmental and economic good are we willing to forego in order to prop up the old industries? ...

(4) Some pay for all

The economics of wind power are peculiar. The benefits are global (reduced reliance on oil, reduced greenhouse gas emissions) but the costs are local (expense, sight, sound, wildlife damage). The costs and benefits largely affect different groups. Some other clean sources of energy, and some dirty ones, share the same peculiarity.

So do OA resources, and especially OA journals. The benefits are global (barrier-free access for everyone, increased research productivity) but the costs are local (expense, labor). Moreover, the costs and benefits largely affect different groups. The costs are borne by the publisher and those who support it through publication fees or subsidies. The benefits are enjoyed by researchers everywhere.

"Some pay for all" (SPA) applies equally to fee-based and no-fee OA journals. It also covers green OA as well as gold OA. The cost of a repository is borne by the institution hosting it, and perhaps a few benefactors elsewhere such as foundations or consortial peers. But the benefits are global."

"The giants of the film industry have lost their case against ISP iiNet in a landmark judgement handed down in the Federal Court today.
The decision had the potential to profoundly impact internet users and the internet industry as it sets a legal precedent surrounding how much ISPs are required to do to prevent customers from downloading movies and other content illegally.
But after an on-and-off eight week trial that examined whether iiNet authorised customers to download pirated movies, Justice Dennis Cowdroy found that the ISP was not liable for the downloading habits of its customers."

And in a separate development the Australian Department of Foreign Affairs and Trade (DFAT) has denied that ACTA negotiators have any plans to introduce a 3 strikes regime.

Intellectual property protection is critical to jobs and exports that depend on innovation and creativity. Trade in counterfeit and pirated products undermines those jobs and exports, exposes consumers to dangerous knock-offs from toothpaste to car parts, and helps fund organised crime.

The ACTA negotiations are one of many international efforts to fight counterfeiting and piracy – not to “transform” already strong US and European Union copyright laws. Far from keeping them secret, governments participating in these negotiations have sought public comments, released a summary of issues under discussion, and enhanced public engagement.

Among other things, the summary states clearly that “ACTA is not intended to interfere with a signatory’s ability to respect its citizens' fundamental rights and civil liberties”.

The office of the US trade representative has posted ACTA information online at www.ustr.gov/acta. The site includes meeting agendas and links to help the public understand the US approach to key provisions, which is consistent with US law. Other partners have made their own information available about this important work to protect consumers and intellectual property worldwide."

Wednesday, February 03, 2010

"A judge on Tuesday weighed whether a lawsuit should proceed that seeks to invalidate a company's patents on two genes linked to an increased risk of breast and ovarian cancer.
The case challenging whether anyone can hold patents on human genes has broad implications for the biotechnology industry and genetics-based medical research.
Last March, the American Civil Liberties Union and the Public Patent Foundation sued Myriad Genetics Inc., the University of Utah Research Foundation and the U.S. Patent and Trademark Office in U.S. District Court in Manhattan.
The ACLU and the patent foundation say Myriad's refusal to license the patents broadly has meant that women who fear they may be at risk of breast or ovarian cancer are prevented from having anyone but Myriad look at the genes in question."

I'm pleased this one has finally reached the inside of a courtroom but not necessarily that optimistic about the outcome. Myriad Genetics have been exploiting these patents in a variety of jurisdictions for quite a long time now in patent life terms (since between 1997 and 2000 in the US for example though a number of the patents have been revoked in the EU).

"the subject of net neutrality comes up vicariously, interwoven into every subject, and it is this that gives the power to the debate: net neutrality affects and changes everything, it has impact on all other communications policy discussions."

I'm really looking forward to reading it and would encourage regular b2fxxx visitors to do likewise.

Several people have asked me about Bill Gates and Microsoft’s role in the history of the Web in the wake of the opening programme in the Open University's new series on BBC2 on Saturday evening, The Virtual Revolution. In particular there was interest in the legal ruling that presenter Dr Aleks Krotoski said “meant that Microsoft had had its wings clipped.”

There have actually been a series of legal disputes between Microsoft and the US government and between the software giant and the EU. To keep things relatively simple I’ll focus here on one part of the US case relating to the Web.

By the mid 1990s when the Web hit public consciousness most web users were using a web browser called Netscape Navigator. Then, as Dr Krotoski says, Microsoft launched its own browser, Internet Explorer, and gave it away for free with its Windows 95 operating system software. But Microsoft didn’t just give the browser away. PC manufacturers selling PCs with Windows 95 were obliged, under the software licence agreement, to include the Internet Explorer browser on their PCs.

This didn’t have an immediate impact on Netscape’s market share. However, as Microsoft issued improved versions of Internet Explorer and continued to insist on the bundling software licence provisions requiring PC makers to use their browser, Netscape’s position as market leader was eroded and eventually decimated. People running computers with Windows 95 quite naturally just used the user friendly browser with the convenient icon on their desktop.

Microsoft, in an earlier case with the US Department of Justice (DOJ) settled before the release of Internet Explorer, had agreed not to use its dominant market share to squash the competition. The DOJ now felt that was exactly what the company was doing to Netscape and, along with 19 US states, in 1997 sued the company for breaking the earlier agreement and engaging in anti-competitive practices. The case proved to be a complex and fascinating story in itself, full of dramatic courtroom revelations and characters, victories and losses for the various protagonists.

By 1999 Judge Jackson decided that Microsoft had engaged in anti-competitive behaviour that was damaging to competitors and consumers and in April the following year he issued his final ruling to that effect. Then in June 2000 Judge Jackson ordered that Microsoft be broken into two companies. Microsoft appealed.

In January 2001 George W. Bush ascended to the White House as the 43rdUS President and John Ashcroft took charge of the DOJ on his behalf. In June 2001 the Appeal Court reversed Judge Jackson’s breakup order. By September the DOJ told the new judge in the case, judge Kollar-Kotelly that it was no longer seeking the breakup of the company as a penalty for its actions. By November 2002 Judge Kollar-Kotelly approved a settlement reached by Microsoft and the DOJ and most of the states. Massachusetts fought on alone in vain until 2004.

So did Microsoft have its wings clipped as Dr Krotoski says? Well it’s debatable and you’ll find many expert commentators on both sides of the divide on that one. What is clear is that in 1995 Netscape was the window to the web for the masses. By 1997, when this particular version of the Microsoft legal story began, Netscape still had the lead in the browser wars though Internet Explorer was catching up fast. By the time the case was settled Internet Explorer was dominant and Windows XP had been launched, including the latest version of Internet Explorer. Netscape was taken over by AOL in 1998 but effectively ceased to exist by the summer of 2003.

Monday, February 01, 2010

I've deliberately avoided getting into the media frenzy about Apple's latest creation, the over-sized iPod Touch called the iPad. But John, as usual, gets it spot on:

"If the iPad takes off as the iPhone did, then it will have as disruptive an impact on the computing and media industries as the Apple phone has already had on mobile telephony.
And if that happens then we will all have to take a long, hard look at the company that has made it possible.
For the implication of an iPad-crazed world – with its millions of delighted, infatuated users – is that a single US company renowned for control-freakery will have become the gatekeeper to the online world. The iPad – like the iPhone – is a closed, tightly controlled device: nothing gets on to it that has not been expressly approved by Apple. We will have arrived at an Orwellian end by Huxleian means. And be foolish enough to think that we've attained nirvana."

Brewster Kahle also points out some of his concerns about a future of Apple control in this morning's Guardian.